(dissenting):
I dissent.
The board of review, in concluding that the accused was prejudiced by the refusal of the law officer to grant the continuance, said:
“In our view, defense counsel was not given sufficient time to perfect his defense. In his own words, he emphasized that accused’s mental responsibility either total or partial was the central theme of the defense. Moreover, he was not prepared for trial on that issue. Furthermore, defense’s theory of the case was never made an issue at trial.” [Emphasis supplied.]
Before this Court the Government advanced the contention that the board of review erred in arriving at its conclusion because defense counsel had failed to show “reasonable cause” for a continuance. Article 40, Uniform Code of Military Justice, 10 USC § 840, provides that a court-martial may for *143“reasonable cause” grant a continuance to either party. United States v Knudson, 4 USCMA 587, 16 CMR 161. Paragraph 58e, Manual for Courts-Martial, United States, 1951, in implementing this provision of the Code, lists among the grounds that may be considered reasonable in granting a continuance the fact that counsel have had “insufficient time to prepare for trial.” I believe this goes to the very heart of the issue now before us. Defense counsel had claimed both before trial and prior to arraignment, that he simply was not prepared to adequately represent the accused. The law officer’s denial of the motion for a continuance thus had the effect of forcing an admittedly unprepared . counsel to unwillingly proceed to trial. Assistance is not effective when counsel has insufficient time to prepare his defense. United States v Bergamo, 154 F2d 31 (CA3d Cir) (1946). Although the prompt disposition of criminal cases is to be commended and encouraged, one charged with a serious crime must not be stripped of his right to advise with counsel and prepare his defense. Walleck v Hudspeth, 128 F2d 343 (CA 10th Cir) (1942).
The Government further argues that counsel’s request was frivolous and dilatory because he had failed to exercise due diligence in securing available psychiatric testimony on behalf of the accused. Assuming, without expressing an opinion, that this contention is sound, can it prevail against this accused? I think not; for to hold otherwise would be to visit the sins of the defense counsel upon the accused. It is repugnant to our Anglo-Saxon system of jurisprudence to intentionally penalize an accused for the incompetent and ineffective assistance of his appointed counsel. This is especially so in the military where an accused has little if any control over the selection of his appointed counsel. In this case the first appointed defense counsel— Captain Saltzman — had been requested by the accused and had represented him during the pretrial investigation, until relieved of his duties and transferred to the Zone of Interior during the accused’s absence and without the knowledge or consent of the accused.
The clear intent of the Uniform Code of Military Justice and the Manual for Courts-Martial, supra, is that an accused shall have full opportunity to prepare for trial. We have held it to be an abuse of discretion on the part of the law officer to refuse to grant defense counsel a continuance after trial had begun in order to obtain a defense witness. United States v Plummer, 1 USCMA 373, 3 CMR 107. In United States v Sizemore, 2 USCMA 572, 10 CMR 70, we held that the law officer had erred to the prejudice of the accused in not permitting defense counsel a ten-minute recess in order to get “his thoughts together” prior to presenting final argument. Thus, regardless of the ability or inability of the appointed counsel to offer adequate representation, I believe the accused was denied the effective assistance of counsel. As the Súpreme Court of the United States stated in Glasser v United States, 315 US 60, 62 S Ct 457, 86 L ed 680, at page 76:
“. . . The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”
I do not wish to be understood as implying that the Government is at the mercy of defense counsel who continually claims unpreparedness thereby indefinitely postponing trial. If such claims are frivolous or intended solely for the purpose of delay, then recourse .may be had by the removal of such dilatory counsel by competent authority and by replacing him with counsel who will effectively assist the accused. Neither do I wish to derogate from the well-settled principle that the question of a continuance is one directed to the sound discretion of the law officer and will not be reversed on appeal in the absence of a clear showing of an abuse of discretion. United States v Knudson, supra; United States v Nichols, 2 USCMA 27, 6 CMR 27; paragraph 58d, Manual for Courts-Martial, supra. However, unless the law officer is satis-*144ñed that counsel is in fact able to proceed, I believe the interests of military-justice will best be served by granting a reasonable length of time to permit •him to perfect his case.
In the case at bar the defense counsel had at trial sought a continuance of three weeks. The trial counsel had, several weeks prior thereto, concurred in a similar request directed by the defense counsel to the convening authority. At that time the trial counsel had informed the convening authority that all important witnesses would be available for a “minimum of five months” and that the delay in bringing the case to trial would not hamper the preparation of the Government’s case. In addition, trial counsel had noted without contradiction that local psychiatrists were unavailable in Nouasseur, French Morocco. In United States v McFerren, 6 USCMA 486, 20 CMR 202, we recognized the importance of the locale of trial in securing expert witnesses when we said:
“While this case must be resolved on its particular facts, it is of importance in formulating the necessary principles not to overlook the peculiar situation of the military-serviceman. In many instances, accused persons in the military service are in foreign lands and the possibilities of obtaining expert witnesses to assist them in their defense is considerably restricted. Here, the Government found it necessary to transport a handwriting expert from Japan to Okinawa to establish its case against the accused. Apparently no other person qualified in this field was available at the place of trial, and it would be difficult indeed for the accused to obtain the services of an expert. While we have not been confronted with many handwriting cases in which expert witnesses have been used, the possibilities of their use is ever present, and the limitations facing an accused in the service make it necessary that he be given consideration not necessarily granted to persons tried in local courts. Certainly, in considering whether a law officer abused his discretion, we must consider the handicaps placed upon an accused person in presenting his side of the controversy.” [Emphasis supplied.]
Furthermore, the seriousness of the charges — eloquently attested to by the imposition of a sentence to twenty-eight years’ confinement at hard labor — would require that the defense be given every reasonable opportunity to present the accused’s case in its most favorable light.
The Court’s reliance on the case of United States v Schick, 6 USCMA '493, 20 CMR 209, is misplaced for there the issue of the accused’s sanity was adequately raised at trial. Although his efforts to obtain American psychiatrists were unsuccessful, he did succeed in obtaining the services at trial of two highly-qualified Japanese psychiatrists. See the Court’s subsequent decision in Schick, 7 USCMA 419, 22 CMR 209. In our original decision remanding the case to the board of review for reconsideration of the question of sanity because of “unusual circumstances,” we said:
“Once an accused has had a fair opportunity at the trial level to litigate the issue of his mental responsibility for an offense and his capacity to stand trial, those issues should, on appeal, be accorded the same treatment as all other contested matters. We mean that the question should .not be tried de novo at every appellate level. A day in court means one fair and just trial of contested issues, and when that has been granted to an accused, he does not have a right to a second trial in an appellate forum.” [6 USCMA 494, 20 CMR 210.]
In the case at bar, however, the accused, because of his counsel’s lack of preparedness, was unable “to litigate the issue of his mental responsibility” before the triers of fact. Therefore, in my view, he has never had the “one fair and just trial of contested issues” referred to by the Court in the Schick case, supra.
I believe the board of review did not err in concluding that the law officer’s *145denial of the request for continuance materially prejudiced the substantial rights of the accused. I would affirm the board of review’s decision.